Executive Usurpation

Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 3Executive Usurpation

“The only liberty that humanity can tolerate is the liberty that is under the law.”

E. J. Phelps

“Reasonings from the excesses of liberty or the neglect of the people, in favor of arbitrary government, involve the tacit fallacy that perfect or at least superior wisdom and virtue will be found in such government.”

Hallam

“It is necessary to create in the multitude, and through them to force upon the leading ambitious men, that rare and difficult sentiment which we may term a constitutional morality * * * a paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts.”

Grote

“Despotism often promises to make amends for a thousand ills; it supports the right, it protects the oppressed, and it maintains public order. The nation is lulled by the temporary prosperity which accrues to it; until it is roused to a sense of its own misery.”

De Tocqueville

PRESIDENT ROOSEVELT, in his message of December, 1906, in justification of his criticism of Federal judges, said: “It is the only practicable and available instrument in the hands of free people to keep such judges alive to the reasonable demands of those they serve.” These words might be invoked as a justification of what may appear, in this and the next chapter, to be a severe criticism of his executive action, but it would seem that the only limitations upon criticism, even of one holding the exalted position of head of the nation, should be those which justice, impartiality, and honest motives necessarily impose.

Before discussing the acts of the President which exceed his authority, let us observe for a moment the vast power which he legitimately exercises. All of the power necessary to execute the laws is conferred upon the President. It is true that there is an enumeration of executive powers, but in view of a recent decision of the United States Supreme Court,53 upon the like scope of judicial power in the Constitution, we might well assume that the powers enumerated as executive powers are not exclusive of such other powers as are necessary to the execution of the laws. Besides ambassadors and members connected with the diplomatic and consular service, the President now nominates, subject to confirmation by the Senate, about 8,000 officials. On June 30, 1905, there were upward of 300,000 positions in the executive civil service, excluding- those of the diplomatic and consular service. At that time about 100,000 of them were not subject to the rules requiring the appointments to be made from competitive examinations. Under the Federal Rate Bill the Interstate Commerce Commission, which is appointed by the President, is given power to establish the freight rates of the commerce of over 80,000,000 of people, on 220,000 miles of railway. What greater power could an ambitious President wish than the appointment and control of a commission which fixes the rates of freight and of passenger traffic on every interstate railway in the United States?

Unless the other departments of government, whose office it is to check executive usurpation, are backed by an effective public opinion, the executive has always the means of setting them aside or compelling them to subservience. The courts will not interfere with the President or the other executive officers of the government in the execution of their ordinary official duties, even when those duties require an interpretation of the law.54

The men who framed the Constitution and the state delegates who adopted it were disgusted with the feeble-ness which had been shown under the Confederation, and they went to the other extreme in making the President the most powerful ruler, as it has turned out, in the world today. They were undoubtedly influenced by the fact that everyone looked to George Washington as the first President, and they little foresaw the terrible power which would be centered in the President when the United States would consist of forty-six states, extending from the Atlantic to the Pacific and embracing 3,500,000 square miles of territory, besides many dependent colonies. “The President,” says Mr. Bryce, “enjoys more authority, if less dignity, than a European king.”55 “Within the sphere of national administration,” says Mr. Fairlie,56 “his” (the President’s) “effective personal authority is of more value than that of most constitutional monarchs of Europe or even of their prime ministers.”

The French President is chosen for seven years by the national assembly, consisting of the Senate and Chamber of Deputies. He is given the power to execute the laws and the appointment of the officers of the government; but when the Ministry fails to receive the support of the Chamber he simply calls upon some member of the opposition to form a Ministry, and the Chamber of Deputies rules France through its ministers as the House of Commons rules England. Casimir-Perier resigned his office as President of the Republic of France within a few months after his election, saying that the President of the Republic exercised so little real power as to be entirely overbalanced by the omnipotence of the French Chamber of Deputies. The power of the President of the French Republic has been steadily declining, while the power of the Chamber of Deputies has been as steadily growing. The President is not responsible for his official conduct, his acts being countersigned by one of his ministers. He usually does not even attend cabinet consultations in which the policies of government are discussed. Sir Henry Maine described the French President as follows: “The old kings of France reigned and governed. The constitutional king, according to M. Thiers, reigns but does not govern. The President of the United States governs but does not reign. It has been reserved for the President of the French Republic neither to reign nor to govern.”57

The King of Italy appoints the ministers when the ministry ceases to have the confidence of the popular branch of the legislature. His sanction is necessary to the validity of a law passed by the legislature, but he never refuses that sanction. Even the treaties which he makes, especially treaties of commerce, require the assent of both chambers. No act of the legislature becomes valid unless countersigned by a minister, and in Italy, as in France, the popular branch of the legislature actually carries on the government, the king himself being subject in most respects to their control.

The German Emperor, aside from his position as king of Prussia, does not possess powers so extensive as the President of the United States. The laws enacted by the Bundesrath and the Reichstag are enforced in the several states of the empire by local officers, and the German Chancellor rather than the Emperor has general supervision over their enforcement. The direct appointments to office by the German Emperor and his Chancellor are thus fewer than those of our executive department. Aside from his direction of the army and navy and the charge of foreign affairs as Emperor of Germany, he acts as the delegate of the confederated government in about all other matters under the direction of the Bundesrath. He has no veto. The German Emperor appoints and dismisses his ministers and they are accountable to him, not to the legislative power, just as the members of the cabinet are accountable to the President. They are the ministers of the king as the cabinet are the ministers of the President, and not at all, as in England, France, and Italy, the ministers of the parliamentary majority.

In Switzerland, the President of the Swiss Confederation is little known to the people and his powers are very limited. The federal laws are carried out generally by the authority of each canton, and even the army is under the management of the cantons, the central government, however, making the regulations, appointing the superior officers, and having the command in the field.

Kings have ever been the bugaboo of our American people; but the President of the United States today, in the legitimate exercise of his authority, exercises a greater power than any constitutional sovereign on the face of the earth, his power in Europe being exceeded only by that of the czar or the sultan. All the bulwarks of liberty were reared not against the English Parliament but against the English king. The same is true of all modern parliamentary governments. “Do not make me a king,” said Cromwell, “for then my hands will be tied by all the laws which define the duties of that office, but make me director of the commonwealth and I can do what I please; no statute restraining and limiting the royal prerogative will then apply to me.”

The President of the United States may approach the execution of his powerful office in the spirit of being a simple instrument of Providence, but if he is not endowed with the clearest head and most eminent common sense he will become so intoxicated by power as to imagine that he has become Providence itself. Inasmuch as all of his duties are not defined, and the exercise of those defined is discretionary, he can commit innumerable violations against the Constitution, and commit them in such a manner as to deprive the United States Supreme Court of all jurisdiction over the matter. There is no remedy but impeachment. For these reasons usurpations of power by the President are much more dangerous than by the Legislature. The command to the Roman dictator was to take care that the state received no harm; such indefinite commands and discretionary duties open endless avenues for the advancement of absolutism. But, say those who exalt the power of the President and contend that there is no danger to the people from his usurpations, he is restrained by the people, he is “the servant of eighty million sovereigns, whose soul-inspiring purpose is to serve his fellow-citizens.”

Let us see if this fact is a safeguard against usurpation. Louis Napoleon was elected President of the French Republic in December, 1848, by a large majority. In 1850 a law was passed restricting the suffrage and disfranchising about 3,000,000 voters. This law, as I remember, was passed with his tacit consent, but the wily President wished to be emperor. In order to be emperor he must appear as the champion of popular rights, so in 1851 he called upon the Chamber to repeal the disfranchisement law of 1850, and to restore the franchise to the 3,000,000 voters. They refused. Within about a month the Coup d’Etat of December 2d took place, the chief statesmen and generals of France were arrested in their beds, dragged off to prison, and his usurpation was approved by 8,000,000 electors. He was confirmed as emperor in November, 1852, by an overwhelming vote, and even so late as a few weeks before the Franco-German war his imperial rule was ratified by a large majority. During the whole of his reign the members of the Chamber of Deputies were elected by universal suffrage, and yet the rule of Louis Napoleon was a despotism.

“A bold President,” says Mr. Bryce, “who knew himself to be supported by a majority in the country, might be tempted to override the law and deprive the minority of the protection which the law affords it.”58 “The gloss of zeal for the public service,” says Edward Livingston, “is always spread over acts of oppression, and the people are sometimes made to consider that as a brilliant exertion of energy in their favor which, when viewed in its true light, would be found a fatal blow to their rights. In no government is this effect so easily produced as in a free republic; party spirit, inseparable from its existence, aids the illusion, and a popular leader is allowed in many instances impunity, and sometimes rewarded with applause, for acts which would make a tyrant tremble on his throne.”59 The people who elect the President can make and unmake constitutions, and it is natural for a strenuous, ambitious President, when sustained by the people, to feel that he is endowed with powers beyond the constitution.

Article XXX of the Massachusetts Constitution of 1780 runs thus: “In the government of this commonwealth the legislative department shall never exercise the executive and judicial power, or either of them; the executive shall never exercise the legislative and judicial power, or either of them; the judicial shall never exercise the legislative and executive power, or either of them, to the end it may be a government of laws and not of men.” The same principle of a separation of these three departments is emphatically asserted in the constitutions made during the Revolutionary War in Maryland, North Carolina, New Hampshire, Virginia, and Georgia. The first resolution concerning the Constitution of the United States passed by the Constitutional Convention stated:

“That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.” Six states voted for the resolution, Connecticut voting against it, and New York divided.60

Thomas Jefferson, in a letter to William C. Jarvis, written with reference to the stability of our Republic many years after he had retired to private life, said:

“If the three powers of our government maintain their mutual independence of each other it may last long, but not so if either can assume the authority of the other.”

Madison said: “If it be a fundamental principle of free government that the legislative, executive, and judiciary powers should be separately exercised, it is equally so that they be independently exercised.”6l Montesquieu wrote: “There is no liberty if the judiciary power be not separated from the legislative and executive powers.” And Chief Justice Chase, speaking for the United States Supreme Court, says: “It is the intention of the Constitution that each of the great coordinate departments of the government, the legislative, the executive, and the judicial, shall be, in its sphere, independent of the others.”62

In a speech made at Harrisburg on October 4, 1906, the President of the United States said: “In some cases this governmental action must be exercised by the several states individually. In yet others it has become increasingly evident that no efficient state action is possible, and that we need, through executive action, through legislation, and through judicial interpretation and construction of law, to increase the power of the Federal government. If we fail thus to increase it, we show our impotence.” This statement is but a reiteration of similar statements made again and again by the President. He has made no secret of his desire to increase the powers of the central government through “judicial interpretation and construction of law.”

Mr. Elihu Root, as the Secretary of State, holds the department first in importance in the national government and the one in which the President of the United States has always taken greater part than any other. He also occupied the position of Secretary of War under President Roosevelt during his first term of office. He and the President are warm personal friends. Mr. Root has been regarded as the nearest to the President of any of the members of his cabinet. On December 12, 1906, Mr. Root, speaking in New York, after noting “the gradual passing of control” into the hands of the national government and summarizing “other projects tending more and more to obliteration of state lines,” declared: “It may be that such control would better be exercised in particular instances by the government of the States, but the people will have the control they need either from the States or from the national government, and if the State fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised  in the national government.” Now what condition of affairs have we when the President expresses his opinion that we are impotent if we do not increase the power of the national government through executive action, through legislation, and “through judicial interpretation and construction of law,” and the Secretary of State, presumably speaking for the administration which he represented, declares that if the states fail to furnish this power in due measure, “sooner or later constructions of the Constitution will be found to vest the power where it will be exercised  in the national government.”

The President appoints the judges of the Supreme Court of the United States and of the District and Circuit courts. During his term of office as President he has appointed three of the nine Associate Justices of the Supreme Court, seventeen of the twenty-nine United States Circuit Court Judges, and forty-five of the eighty-two Judges of the United States District Court. Mr. Bryce says: “Yet even the Federal Judiciary is not secure from the attacks of the two other powers, if combined. For the legislature may by statute increase the number of Federal justices, increase it to any extent, since the Constitution leaves the number undetermined, and the President may appoint persons whom he knows to be actuated by a particular political bias, perhaps even prepared to decide specific questions in a particular sense.”63 Professor Dicey, speaking of our Federal Judiciary, says: “Judges, further, must be appointed by some authority which is not judicial, and where decisions of a Court control the action of government there exists an irresistible temptation to appoint magistrates who agree (honestly, it may be) with the views of the executive.”64 Daniel Webster, at the Whig Convention at Worcester, Mass., in 1832, speaking of Jackson and his attitude toward the United States Supreme Court, said: “The judicial power cannot stand for a long time against the executive power. The judges, it is true, hold their places by an independent tenure, but they are mortal, and the vacancies will be filled by judges agreeing with the President in his constitutional opinions.”

The President has taken a most solemn oath to “preserve, protect, and defend the Constitution,” and having taken that oath he boldly declares that we need to increase the power of the government through “judicial interpretation and construction,” and his Secretary of State tells us that it will be increased by such “constructions.” A deliberate attempt on the part of the President or the Supreme Court to amend the Constitution by construction, when the Constitution distinctly provides the only legal method of amendment, is an attempt to take away the sovereignty of the people and to vest the power of amendment in a department of the government where it does not belong, and is nothing short of a flagrant usurpation of power.

Is there doubt that the President desires to accomplish this through the United States Supreme Court? If there is, the doubt can be. removed. The President, in 1906, said: “I cannot do better than base my theory of governmental action upon the words and deeds of one of Pennsylvania’s greatest sons, Justice James Wilson. He developed, even before Marshall, the doctrine (absolutely essential, not merely to the efficiency, but to the existence of this nation) that an inherent power rested in the nation outside of the enumerated powers conferred upon it by the Constitution, in all cases where the object involved was beyond the power of the several states and was a power ordinarily exercised by sovereign nations. Certain judicial decisions have done just what Wilson feared: they have, as a matter of fact, left vacancies, left blanks between the limits of actual national jurisdiction over the control of the great business corporations. Many legislative actions and many judicial decisions, which I am confident time will show to have been erroneous and a damage to the country, would have been avoided if our legislators and jurists had approached the matter of enacting and construing the laws of the land in the spirit of your great Pennsylvanian, Justice Wilson  in the spirit of Marshall and of Washington. Such decisions put us at a great disadvantage in the battle for industrial order as against the present industrial chaos.”65

The President here declares that in all cases where the object involved was beyond the power of the several states and was a power ordinarily exercised by a sovereign nation, the United States Supreme Court ought to hold that it is an inherent power vested in the nation, outside of the enumerated powers conferred upon it by the constitution. This Court has ever held that there was no such inherent power in the national government and their latest decision reiterates that holding.66 Notwithstanding this, the President, the head of a separate and distinct department of the government, of which the Judges of the United States Supreme Court should be absolutely independent, declares their holding to have been erroneous, and a damage to the country, and does not seem to see the impropriety of such a statement.

But the President has not stopped even there in his criticisms of the Federal Judges. In his annual message to Congress of December, 1906, speaking of a recent decision of a United States District Court judge, he said: “I have specifically in view a recent decision by a District Judge, leaving railway employees without a remedy for violations of a certain so-called labor statute. It seems an absurdity to permit a single district judge against what may be the judgment of an immense majority of his colleagues on the bench to declare a law solemnly enacted by the Congress to be unconstitutional.” The Judge referred to was Judge Walter Evans, and the decision referred to was in the case of The Order of Railway Telegraphers against the Louisville & Nashville Railroad Company. Judge Evans decided in favor of the railroad on the ground that Section 10 of the Act of Congress of June 1, 1896, on which the suit was brought, was void. The President referring to this decision made the above remarks, in which he tells us that an “immense majority” of the colleagues of Judge Evans may not agree with him as to the decision in that case.

Now what is the natural effect of such criticism on the part of the President of the United States of District Court judges? Those judges are ambitious for advancement. The President is able to appoint them to vacancies occurring in the Circuit Court, or even to vacancies which may occur upon the United States Supreme Court. Those District Court judges are in close relation with his administration. He has appointed many of them to the position. Can there be any doubt that the criticisms of the President who can advance them, made in a message to Congress, read by all the people, and the fear of such criticisms on their own part, will affect their independence? The Representatives in Congress are, however, seeking to clothe the President with the dangerous power of removing Circuit and District Judges without formulating charges, without a hearing, and whenever in his judgment the public welfare will be promoted. In January, 1907, Mr. De Armond introduced such a bill in the House of Representatives.67 The President has invoked James Wilson as authority for his construction of the Constitution, yet James Wilson, in the Pennsylvania Convention for the adoption of the Constitution, said: “I believe that public happiness, personal liberty, and private property depend essentially upon the able and upright determinations of independent Judges.” Chief Justice Marshall, in the Virginia Convention, in 1829, well said: “The judiciary department comes home in its effects to every man’s fireside; it passes on his property, his reputation, his life, his all. Is it not in the last degree important that he [a judge] should be rendered perfectly and completely independent, with nothing to control him but God and his own conscience? I have always thought, from my earliest youth until now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary.”68 Will the independence of District judges continue if they are subject to attacks by the President who appoints them? Am I not justified in saying that the executive, in view of his appointive power, should never either by words of approval or disapproval make himself a reviewing power of their decisions?

The Star Chamber, created by the King and filled by judges who were his servile tools, developed such tyrannical abuses that the English people destroyed not only the Court but Charles I himself for such tyranny. Our people should demand the fundamental constitutional right for the federal judiciary to unquestioned independence, free from any interference from the executive either by influence in advance of a decision or by attack after a decision. If federal judges are not already affected by the opinions of the President, how long will they continue to resist such strenuous assaults upon their action? The consequences of such attacks on the Supreme Court of the United States by the President ought to be so plain as to alarm the dullest comprehension. The Emperor Tiberius, according to Tacitus, was in the habit of taking his seat in the law courts, and by his presence overawing them, thereby gradually destroying the freedom of the courts. His methods were not less calculated to influence the action of the judges than those of our President.

But it is not alone that the independence of a separate branch of the government is thus imperiled by the President’s action; it is of the highest importance that the people believe that the United States Supreme Court decides its cases, if not always wisely, at least without being- influenced by another branch of the government. Should the members of that court be put under the embarrassment of having it appear that their action is influenced by the words of the President? “Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner that will beget no suspicion of the judge.”69 And Lord Campbell declared “that tribunals should take care that not only in their decrees they are not influenced by overpowerful interests, but to avoid the appearance of laboring under such influence.”70 How can the judges of the Federal courts avoid the appearance of laboring under the influence of the overpowerful executive if he continues in his exhortations that the Executive and Congress possess inherent powers and that the Supreme Court should so decide? How can these courts retain their independence if, after they have made decisions, they are subject to animadversion in the annual messages of the President to Congress? Such conduct, I submit, tends clearly to impair the usefulness of the judiciary as an independent department of the government and merits condemnation.

It is not alone the courts which the President apparently has attempted to influence in their action, but he persistently seeks to control the action of the Senate and, to some extent, the House of Representatives. It is the intent of the Constitution that Congress, made up of the representatives of the people, shall be the judges of what laws are required by the public welfare. If the President brings power to bear upon Congress to affect legislation, even though the people wish the legislation, he is still encroaching upon the field of an independent department of government. During the last few years many measures have been enacted under stress of executive pressure which otherwise would have stood no chance of passage. In the South American countries, congresses and courts employ themselves in registering executive decrees. If present conditions continue the same condition will exist in our own country. People desiring legislation well know this, and again and again we read in the newspapers of applications being made by the great railroad interests of the country to the President, not to the Congress, to institute and affect legislation. The United States Senate has come to realize that no fight is thoroughly equipped unless the President is in it. He longs to take a hand in legislation. The newspapers for several years have been representing him with his “big stick” going after the United States Senate and House and compelling them to pass laws. In the passage of the Elkins Bill in the Senate; in the passage of the Rate Bill, and practically all the leading measures which have come before the two Houses of Congress, the President has had his innings and his party in the Senate and House have consulted with him and have carried out his instructions. The American people are coming to look upon the President as the real power behind legislation. When the Rate Bill was in the Senate of the United States, Senator Aldrich, of Rhode Island, and other Senators sought to amend it by providing for a judicial review of the action of the Inter-state Commerce Commission, but the President’s party opposed this action. James Wilson, whom President Roosevelt invokes as authority upon the Constitution, in his lectures upon Law in 1791 before the then College of Philadelphia, said: “The independence of each power (or Department of Government) consists in this, that its proceedings and the motives, views and purposes, which produce these proceedings should be free from the remotest influence, direct or indirect, of either of the other two powers.” The practice, it is said, of wearing hats during the sessions of the House of Commons is an expression of the early feeling of the English Commons against an appearance of servility; they would not uncover before Speaker or King.71

In 1783, when Fox brought in his famous bill for organizing the government of India, a great outcry against the bill arose. It was alleged that the object of the bill was the centralization of the immense patronage of India in the hands of a few old Whig families. George III, seeing the people aroused against the Ministry, asked Lord Temple to let the members of the House of Lords know that any peer who should vote in favor of the bill would be regarded as an enemy of the King. Four days later the House of Commons by a vote of 153 to 80 resolved that: “To report any opinion, or pretended opinion, of his Majesty upon any bill or other proceeding pending in either House of Parliament, with a view to influencing the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the Crown, a breach of the fundamental principles of Parliament and subversive to the Constitution of this country.”72 Now observe that this represented the spirit of English liberty one hundred and twenty-four years ago under George III, whose tyranny was the bugaboo of the makers of the Constitution, the most powerful King in England during the eighteenth century, and perhaps it would not be an exaggeration to say the most powerful King of England for the last two hundred years; yet George III, in all his power, was thus reprimanded.

Today usurpation has become so common upon the part of the President that we think little of it, yet an interference by the Kaiser with the action of the Reichstag, even when it is done indirectly, creates widespread indignation. Before the opening of the sittings of the Reichstag, the court chaplain preaches a sermon in the chapel of the imperial palace before the members of the Reichstag and the German Emperor. Dr. Faber, who now occupies that position, in preaching the usual sermon before the recent opening of the chamber, said: “The Reichstag ought to consist entirely of loyal Deputies who are looking to and following the Kaiser with perfect faith, casting aside all doubt and all questionings. If we had such a Reichstag we could safely leave the control of our destinies to God and the Emperor.” These words are said to have created almost a revolution in Berlin. The members of the Reichstag indignantly resented such teachings. But while Congress is in session, our newspapers each day give much space to describing how the President is guiding the Senate, championing the rights of the people, how the Senate is defiant, how the President insists upon the recognition of the people’s rights, and the play goes on, and the American people seem oblivious to the portentous meaning of such usurpations of power.

Mr. Root assumed, in his speech before the Pennsylvania Society, that the people of the states are neglecting to perform their duties. He tells us that “the instinct of self-government among the people of the United States is too strong to permit them long to respect anyone’s right to exercise a power which he fails to exercise,” and “if the states fail to furnish it in due measure, sooner or later constructions of the Constitution will be found to vest the power where it will be exercised  in the national government.” This assumption is without foundation. The states have long exercised their powers with much greater vigor than has the national government. Thirty of the states and territories of the Union had established commissions or passed laws to regulate the railroads, before Congress in 1887 passed the Inter-State Commerce Law, establishing the Inter-State Commerce Commission. Years of agitation were required before Congress passed the law allowing the creation of the Inter-State Commerce Commission, and then it was the Granger movement, from 1871 to 1887, in the Northwestern States, which finally brought about its passage.73 For many years past the regulation of railroads by State Railway Commissions has been frequently reviewed in the United States Supreme Court.74

The state governments are much better adapted than the national government for the enforcement of laws regulating railway rates. The legislatures of the several states have original power to pass all laws affecting state interests, with no limitations, except those imposed upon their action by their respective constitutions, while the United States government has only the powers delegated to it by the states. The Federal courts have no criminal jurisdiction at common law, their criminal law is technical, and there are great difficulties in those courts in enforcing the statutes punishing crimes. The difficulty with enforcing railway rate bills and regulations of commerce in state courts has been found in the fact that whenever an attempt was made the United States Courts interposed upon the plea that they affected Interstate Commerce. If the United States government would relinquish this right, the state courts could much more easily protect their people from the injustice of outrageous rates on the part of the railways.

That the states have exhibited diligence in attempting to control the rates of freight and passenger traffic during the last year is apparent from the very fact that, during the winter and spring of 1907, the heads of railways were going in rapid succession to Washington to see the President, and to invoke, as we are told by the newspapers, his aid for national rather than state control of railways. More than one captain of the railway industry has expressed the wish within the last year that the states might be prohibited from legislating even with reference to railways that lie wholly within their borders, but which are feeders of trunk lines. There is reason to believe that the President’s activity and anxiety in the matter is to take over the whole control of the railways of the country to the national government upon the urgent request of the railroad managers.

Another evidence that the states are more progressive than the national government is found in the fact that amendments are frequently made to state constitutions, and that many of their constitutions provide for a Constitutional Convention at the end of each period of twenty years. The Constitution of the United States has been amended but twice since the first ten amendments in 1789 until the stormy reconstruction days; and the strange feature of the case today is that neither the President nor any of the men who are urging the courts to construe the Constitution in such a manner as to enlarge the powers of the national government, mention the conferring of such power upon the national government by such amendments. In short, the people have the power to amend the Constitution, but instead of procuring their action to that end the President and his advisers prefer to seek power by judicial construction.

Eight states, Ohio, Indiana, Illinois, Wisconsin, Nebraska, Pennsylvania, Missouri, and West Virginia, passed laws during the last winter fixing the passenger fare of their states, while the legislatures of New York and Virginia passed similar acts, and the governors of those states vetoed them. During the last two years the legislature of the state of New York passed laws ordering a life insurance investigation, the New Life Insurance Code, a law prohibiting corporations from contributing to campaign funds and expenditures, the Eighty-cent Gas Bill for New York City, the Elsberg Rapid Transit Bill, and the Public Utilities Bill. According to the report of Senator Thomas C. Platt of the United States Express Company to its stockholders in April, 1907, twelve of the twenty-six states in which the company was doing business in the year 1907 had passed statutes enlarging the powers of the railroad commissioners over the actions of his company. Insurance investigation along the lines of the Armstrong Committee Bills in New York has been passed or considered by the legislatures of at least two thirds of the states of the Union during the last year. The only railroad under national control, the Union Pacific, had its Credit Mobilier; and the District of Columbia, controlled by a United States commission, has as corrupt government as can be found in the United States, with laws, says Congressman McCall, for the creation of corporations which “would make a Jerseyman blush.” The State of New York and many of the other states of the Union have recently passed rigid laws requiring the publication of all election expenses, but Congress is unable to pass a similar bill governing national elections.

The state easily makes and unmakes its laws, and if it makes mistakes they can be soon corrected; while the national government, with all its checks and balances, its ponderous machinery, the liability of one department to represent one party and another department to represent another party, brings about changes only after years of delay. Ten years passed after the Presidential election of 1876 before Congress attempted to remedy the defects in the Constitution which made necessary the Electoral Commission. Our rigid currency system, based upon national bonds, and our half dozen or more different kinds of currency, have continued for fifty years, during all of which time students of finance have observed its inelastic condition, and the danger of the system in times of panic, when it is impossible to increase the amount of currency until the panic is over, and still Congress has allowed it to continue with but slight changes. Even the Sherman Anti-Trust Law was not enforced against the Northern Securities Company, until the governors of the states through which the Great Northern and the Northern Pacific railways passed held a meeting to consider how to prevent the merger becoming effective, and passed a resolution asking for the enforcement of the law. And then the national government had to be reenforced in its action by the opinion of the Attorney-Generals of two states through which the roads passed, declaring the combination illegal.

The national government, we have seen, has failed in many respects to perform its functions under the Constitution. What would be thought if the states attempted to perform these neglected functions according to their standard of right and justice? The idea, supported by the President and others, that the national government should take over the affairs of the state governments is not only a violation of the Constitution of the United States, but it is absolutely impracticable. “No political dreamer,” said John Marshall, “would ever be wild enough to think of breaking down the lines which separate the states and of compounding the American people into one common mass.”75

James Wilson, upon whose teachings the President relies for his theory of inherent powers in the national government, in the debates on the adoption of the Constitution before the Pennsylvania Convention, said:

“To support, with vigor, a single government over the whole extent of the United States would demand a system of the most unqualified and the most unremitted despotism.”76

In the convention to frame the Constitution, he said: “The state governments ought to be preserved. The freedom of the people, and their internal good police, depend on their existence in full vigor.”77 Hamilton, who more than any other delegate believed in a strong central government, said in the New York Convention while discussing its adoption:

“I insist that it never can be the interest or desire of the national legislature to destroy the state governments. It can derive no advantage from such an event; but, on the contrary, would lose an indispensable support, a necessary aid in executing the laws, and conveying the influence of government to the doors of the people. The Union is dependent on the will of the state governments for its chief magistrate, and for its Senate. The blow aimed at the members must give a fatal wound to the head, and the destruction of the states must be at once a political suicide. Can the national government be guilty of this madness?”78

The United States Supreme Court is not only under a high obligation not to deprive the states of their reserved rights, but it has again and again declared that its obligation requires it to protect those rights as sacredly as it would protect the rights delegated by the states to the national government. Chief Justice Chase, speaking for the Court, said: “It may be not unreasonably said that the preservation of the states and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states.”79 Mr. Justice Miller, in his work on the Constitution, prepared after his retirement from that court, said: “In my opinion the just and equal observance of the rights of the states and of the general government as denned by the present Constitution, is as necessary to the permanent prosperity of our country and to its existence for another century, as it has been for the one whose close we are now celebrating.”80

The states, in delegating a portion of their powers to the national government, did not create an arbiter of their own selection to guard their reserved rights. Although the states must rely entirely upon the impartiality and justice of the United States Supreme Court for the protection of their reserved rights, the members of that Court are appointed by the President with the consent of the Senate. The Supreme Court, in its most recent decision,81 supports the states by declaring that the national government has no legislative powers affecting the nation as a whole except those enumerated in the grant of powers; and that the tenth Amendment to the Constitution, reserving all powers to the states not expressly granted to the nation nor prohibited to the states, “is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning.”

It would unduly extend the discussion in this chapter to fully enumerate the many attempts on the part of the President during the last three years “to increase the power of the Federal Government through executive action” Some of these usurpations have been carried on through the heads of departments responsible to him for their action. A few only of the numerous usurpations will be mentioned.

A bill was introduced into the House of Representatives in the winter of 1904 by Mr. Sulloway, a member of the House from the State of New Hampshire, which proposed that any person who had served ninety days in the army or in the navy during the war of the Rebellion, and who had reached the age of sixty-two years, should become entitled to a pension of $8 a month; that everyone who had become sixty-six years of age should be entitled to $10 a month, and everyone who had reached the age of seventy years should be entitled to a pension at the rate of $12 a month. This measure the House declined, or at least failed to enact, whereupon the Secretary of the Interior, by an order dated March 15, 1904, decreed that its terms should nevertheless govern the Pension Office, and millions of dollars have been paid out of the Treasury without any other warrant of authority than this order or decree of the Interior Department. Five hundred years before the adoption of our Constitution it was the law of England that the Commons had the exclusive right to originate money bills and to determine the purposes for which moneys appropriated should be used, and the king could not use the public moneys except they were expressly appropriated by the Commons for a specific purpose. In 1640 the House of Commons declared:

“We have had uninterrupted possession of this privilege (the privilege of the undisputed control over the taxation and finances of the country) ever since the year 1407, confirmed by a multitude of precedents both before and after, not shaken by one precedent for these three hundred years.”82

For an attempted violation of this right of the Commons, Charles I was sent to the scaffold. In 1678 the House of Commons declared that “it is the undoubted and sole right of the Commons to direct, limit, and appoint, in such Bills, the ends, purposes, considerations, conditions, limitations, and qualifications of such grants.”83

“All bills for raising revenue shall originate in the House of Representatives,” says the Constitution; and power “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States,” is given to Congress. Now it is to be observed that a pension bill to provide for particular classes of persons had been introduced into Congress, and Congress had either declined or had failed to enact the law. “A minister,” says Mr. Lecky, “who has asked and been refused the sanction of Parliament for a particular policy, and who then proceeds to carry out that policy by other means without parliamentary sanction, may be acting in a way that is strictly legal, but he is straining the principles of constitutional government.”84 Now we have here a case of an executive officer who took from the Treasury of the United States millions of dollars and appropriated them to a purpose contemplated by this rejected law, without any law or warrant whatever from Congress. It is true that when the question was raised of his right to thus draw money from the Treasury of the United States without a law authorizing it, he declared that he was entitled to use the money under a prior statute. But he had been administering that same statute for years upon a totally different interpretation, and only resorted to the new interpretation when the proposed law of Mr. Sulloway was not passed by the Congress.

About February 1, 1905, the President of the United States agreed with the Dominican Government on a treaty or a convention whereby a Protectorate of the United States over San Domingo was created, and San Domingo agreed to permit a receiver of its customs duties, selected by the United States, to collect the customs and divide the collections. Forty-five per cent was to go to the support of the Dominican Government, and the remaining sum was to be applied by the United States, or its receiver, in payment of the foreign indebtedness of San Domingo. A considerable portion of this indebtedness was held by English bondholders. They had about £750,000 of bonds for which the Republic of San Domingo had received all told £38,000.

This treaty with San Domingo was sent to the United States Senate for confirmation. A majority of the Committee on Foreign Relations were unfavorable to the treaty, and it was not reported to the Senate. With the treaty before the Committee on Foreign Relations, and no action having been taken upon it, the President, on April 1, 1905, entered into an agreement or protocol with the government of San Domingo embodying practically the same provisions as existed in the original rejected treaty. The original treaty provided that the United States was to grant to the Dominican government, aside from the collection of its revenues, “such other assistance as the former (the government of the United States) may deem proper to restore the credit, preserve the order, increase the efficiency of the civil administration, and advance the material progress and welfare of the Dominican Republic.” If a treaty containing this provision had been confirmed by the Senate, the President would have been left the discretion to take any steps which he deemed proper “to restore the credit, preserve the order, increase the efficiency of the civil administration” of San Domingo, and advance its material progress and welfare. It is the exercise of just such discretionary powers that turns a constitutional officer into a dictator.

The government of the United States, without any treaty, through its receiver, actually collected the customhouse duties of San Domingo from April 1, 1905, until the year 1907, when at last, after several modifications, the treaty was finally approved by the Senate. Under what clause of the Constitution did the President receive the right to appoint a receiver, take possession of the customhouse of San Domingo, collect customs and turn a portion of the amount collected over to the foreign creditors of San Domingo? As executive he can enforce only existing laws. Without any authority whatever, but still in the name of the United States, he, as its President, appointed a receiver of these customs, and became the collector for foreign nations for two years without one syllable of law to justify his action. There is not a precedent for such action in the history of any modern constitutional country. There is no power given to the President from which the right to do this can be possibly inferred. He had a right to make a treaty with San Domingo with the consent of the Senate, but he had no right to act upon any proposed treaty until it had become a treaty, and his action during the whole period of two years was a usurpation of power. If, in a time of peace with no crisis or emergency at hand, the President can exercise such powers, what will such a President do when a great crisis arises and violent passions are excited as in the time of our Civil War?

An act of Congress passed June 28, 1902, authorized the President of the United States to obtain by treaty control of the isthmus or territory known as Panama, a separate state of the Republic of Colombia, for the purpose of building a ship canal across it between the Atlantic and Pacific Oceans. This act provided that if the President should be unable to do so within a reasonable time and upon reasonable terms, that then he should proceed to acquire the necessary territory from Costa Rica and Nicaragua. This act appropriated $10,000,000 to be used by the President toward the undertaking. It also authorized him to pay for the canal $40,000,000.

Pursuant to this authority, Secretary Hay entered into a treaty with Colombia, which was ratified by the Senate on March 17, 1903. The Congress of the Republic of Colombia, when this treaty was brought before them, refused to ratify it upon the ground that they could not alienate a portion of their national domain without an amendment to their constitution. Congress was not in session when this treaty was rejected by the Colombian Government. The representatives of the old Panama Canal Company and of the new Panama Canal Company were in New York City, watching closely the action of the Congress of Colombia; and it scarcely had rejected the treaty before a scheme was concocted in a law office in New York City to raise a sham revolution in Panama, to protect it by United States troops, and to make a new republic of Panama with which to deal. On November 2, 1903, the gunboat Nashville, under directions of the Navy Department, reached the Isthmus, and on the same day an order was sent from the Navy Department to the Nashville, the Boston, and the Dixie, containing these instructions: “Prevent landing of any armed force with hostile intent at any point within fifty miles of Panama. Government forces reported approaching the Isthmus in vessels. Prevent landing if in your judgment landing would precipitate conflict.”

Our rights in Panama were procured by a treaty on December 12, 1846, between our own government and New Granada, to whose rights, under this treaty, the Colombian Republic had succeeded. In that treaty we guaranteed to New Granada the rights of sovereignty and property which she possessed in Panama and agreed that “if the complete and absolute sovereignty and independence (of New Granada) should ever be assailed by any power at home or abroad, the United States will be ready, cooperating with the Government and their ally, to defend them.” But when Panama, a state of Colombia, sought to secede, we, who had fought a four years’ war to establish the doctrine that a state had no right to secede, sent our gunboats to the shores of a friendly country which we had agreed to protect if it was ever assailed by any power at home or abroad and to always recognize its sovereignty, we, in such a crisis, sent our gunboats to aid in dismembering it.

Now observe the hand of preparation. On November 2d our gunboats had reached Panama. On the next day Assistant Secretary Loomis, of the State Department, cabled from Washington to the Consul of the United States at Panama: “Uprising on isthmus reported. Keep department promptly and fully informed.” The uprising which was contemplated, however, had not come off on time and the Consul General at Panama cabled this reply: “No uprising yet; reported there will be to-night.” According to the plan the insurrection did come off at night pursuant to the telegram. In this way a valuable portion of a friendly state was wrested from the Republic of Colombia. Our gunboats and troops held at bay the forces sent by Colombia to suppress this insurrection, and this was all done under the direction of the President or his Secretary. Suppose Great Britain, before the commencement of the Rebellion, had sent her war vessels to our shores, not only inciting the South to an insurrection but aiding- them to carry it out, what would we have thought of the justice of such an action? We would have met such a step with force and fought Great Britain, as well as the South, in the resentment of such an insult.

The President in all this acted in disregard of the act of Congress which directed him, in case he could not obtain control of the Isthmus of Panama in a reasonable time and upon reasonable terms, then to acquire the necessary territory for the canal from Costa Rica and Nicaragua. If the demands of a high civilization require that we appropriate Panama to our own uses, will not that high civilization also demand that we pay Colombia for the part of her territory which we have deliberately taken without giving her any return whatever? How does this unwarrantable seizure of Panama differ materially from the annexation of Texas? the expedition of General Lopez against Cuba in 1851? the spirit of the shameless Ostend Manifesto? the countenance of the government to the filibustering expedition of William Walker to Nicaragua in 1857? or the later attempts to acquire Cuba in 1851-59? And we continue as we did in these other shameless attacks upon the rights of the weak, to measure honor by inclination and justice by expediency.

About midnight of August 13 and 14, 1906, shots were fired in the village of Brownsville, Texas, where the Twenty-fifth Infantry, composed of negro troops, were on duty in Fort Brown. A police officer was killed, and when the attention of the government was called to the suspicion that these shots had been fired by members of the Infantry, Major Blocksom, of the United States army, was sent to Brownsville to investigate. He took the .statements of twenty-one witnesses, eight only of whom claimed to be eyewitnesses of the matter. Major Blocksom made his report to his superior, General Garlington, of the regular army, that the soldiers of the Twenty-fifth Infantry he had interrogated had denied any knowledge whatever of the shooting or of the absence of their comrades from the fort on that occasion.

When this report came to the attention of the President he sent General Garlington to Fort Reno, where the members of the Infantry were encamped, and General Garlington there informed the soldiers that unless they frankly and fully disclosed any knowledge which they had as to who of their comrades had committed the offense, that they would be discharged from the army and debarred from ever again entering the service. Even under this threat all the soldiers denied having anything to do with the shooting or any knowledge whatever of who did it. General Garlington made his report to the President and recommended that Companies B, C, and D of the Twenty-fifth Infantry, comprising 167 soldiers and officers, be discharged without honor and be forever debarred from enlisting in the army and navy of the United States, as well as from employment in any civil capacity by the Government.

Upon the back of this report the President wrote: “Let this recommendation be executed.” General Garlington, in his report, said: “In making this recommendation I recognize the fact that a number of men who have no direct knowledge as to the identity of the men of the Twenty-fifth Infantry who actually fired the shots on the night of August 13, 1906, will incur this extreme penalty.”

It is conceded that only a small number of the soldiers had anything to do with the affray. No one of these 167 men were summoned before a court-martial or given any opportunity whatever to examine or cross-examine witnesses, nor were they represented by counsel, nor did they have a legal hearing in any way whatever. Twelve men, consisting of the Sergeant of the Guard, the men on guard, and other noncommissioned officers in charge of the quarters, the guns, and the gun racks on the night of August 13, and who must have known of the absence from the fort of a part of the three companies, if they were absent, and must have been implicated to some extent in the matter if it occurred, were arrested by the state authorities. An investigation covering three weeks before the grand jury at Brownsville took place, and they were finally dismissed by the grand jury on the ground that there was no evidence whatever upon which to convict them. It is elementary and fundamental law that in times of peace a soldier or officer accused of crime who denies its commission cannot be dismissed without honor and deprived of the right of reenlistment and the right to hold civil office under the government of the United States, without charges being formulated and a hearing given him before a court-martial. The President had not the slightest legal right to discharge these men and inflict upon them the penalty which was inflicted without such a hearing.

The President is the Commander in Chief of the army and navy of the United States, but Congress is given the power to make rules for the government and regulation of the land and naval forces, and Congress, in 1895, prescribed the conditions under which a soldier in the regular army might be discharged without honor. The Articles of War then enacted by Congress under sixty-one separate provisions prescribes the different offenses for which a soldier may be brought before a court-martial and punished, and the sixty-second provision of these Articles of War provides that all other cases must be punished as a court-martial may direct. By the advice of the Department of War, charges against the twelve men whom the Texan authorities sought to indict were prepared under this sixty-second section of the Articles of War, with specifications and lists of witnesses, and apparently with the intent to bring each of the twelve before a court-martial. But because the President had exercised his alleged power to discharge, the apparent inconsistency of such an arraignment with his act brought the matter to an end without a court-martial.

Notwithstanding all these provisions the President, without a hearing, discharged these men without honor and debarred them from reenlistment or from holding any civil office under the United States. General Ainsworth, the Military Secretary of the War Department, said in the report which he made to the President: “A protracted examination of the official records has thus far resulted in the failure to discover a precedent in the Regular Army for the discharge of these members of three companies of the Twenty-fifth Infantry who were present on the night of August 13, 1906, when an affray in the city of Brownsville took place.” It would seem that the President knew that he had no right to discharge these men without their conviction by a court-martial, for in March, 1903, to a question relative to the retention in the army of a man accused of murder, he said: “In this matter, even if this man is a murderer, I am helpless. I have absolutely no power to dismiss anybody from the army in time of peace.”85 The President is not above the law; he is the sworn servant of the law. His act in this case was known to every citizen of the land. There is no greater menace to our country today than the prevalent disregard of the orderly enforcement of the law. Between the years 1885 and 1904 inclusive, 2,286 executions for murder, after trials and convictions, have taken place. During the same period 2,917 suspected men, mostly negroes, have been lynched, and a considerable number of them were publicly burned and tortured. When the President, contrary to law, deprives 167 men of their livelihood and their right to employment by the national government, he sets a dangerous example to every person in the land.

Like usurpations have been numerous. Let us, however, observe one more. The constructive recess of three years ago was conceived by the President to permit the retention in office of certain officials to whom it was believed the Senate was opposed. This recess lasted only from the falling of the gavel in the hands of the President of the Senate, marking the close of the first session of the Fifty-eighth Congress, and the rapping to order which immediately followed the opening of the second session of the Fifty-eighth Congress. And it is to be remembered that the House of Representatives attempted to recognize this as a real recess by voting to themselves $190,000 mileage for attendance on the second session of the Fifty-eighth Congress.

What excuses are offered for these usurpations? Simply that the President thought such usurpations were for the welfare of the American people. Good intentions never justify usurpations of law. Tiberius Gracchus, conscious that his tribuneship had been of great value to the Roman people, and believing that the tribune who would succeed him could not be relied on to carry on his policy, offered himself, notwithstanding the law forbade it, to the Comitia for reflection. He reasoned just as our President reasons, that his tribuneship had brought great blessings to the Roman people; that the poor needed his protection; that the interests of the country demanded his reflection, and that to break the law for a good cause could be atoned for by the fruits of his administration for the second year. Noble as were his purposes, beneficial as might have been his rule, his illegal act resulted in armed resistance, and he and three hundred of his friends were killed at the polls and their bodies flung into the Tiber. The Constitution was given us as a guide of our action. It is beyond the ingenuity of man to invent a justification for its violation. The example of a President obeying its mandates would contribute a thousandfold more to the general good than ever can come from any supposed benefit in its violation.

When it was moved in the Constitutional Convention that a single person should act as the executive of the nation, a profound silence followed, continuing for several minutes, until Washington, the presiding officer, asked what was the further pleasure of the Convention. In the conventions called for the adoption of the Constitution in all of the Southern States and in Massachusetts and New York, much alarm was expressed at the powers of the President and the danger of his perpetuating himself in office. Little did the people at that time contemplate that such vast power would attach to the office by reason of the growth in size of our country, its rapid industrial advancement, and its enormous increase in wealth. The precedent of Washington, followed by his successors, of refusing to accept the office for a third term, has made it unwise, if not practically impossible, for the President to seek it. But the all-sufficient reasons which preclude the President himself from seeking a third term, equally preclude his use of the great power of his office to bring about the nomination of any certain person as his successor. Jackson, to his discredit, dictated his successor as arbitrarily as he settled the question of the national bank. If it is permissible for the President to seek to control the nomination of his successor, then he can bring about the nomination in his party of the man he prefers, and thus perpetuate his rule, although he has ceased to act as President.

The Roman law wisely provided that no one should be a candidate for the Consulship unless he presented himself for the office from a private station in life. If the President is determined to select his successor, he has only to appoint him to a cabinet position of great power, and to vest him with patronage and influence, to make him an overmatch for any man aspiring to the office from private life. If the unwritten law of the land precludes a President from continuing in the office beyond two terms, let us make it also the unwritten law that the occupant of that high office shall not use the almost omnipotent power which he holds from the people in any manner whatever to select his successor. In short, let the American people insist that the exalted office of the President shall lift him far above the use of his power to place any man in the presidential chair, or to obstruct any man from seeking that exalted position from the walks of private life.

A BILLTo make additional provision for the retirement of judges.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That whenever, in his judgment, the public welfare will be promoted by the retirement of any judge of the United States the President shall, by and with the advice and consent of the Senate, nominate and appoint a suitable person possessing the qualifications required by law to the office to be vacated by such retirement, and thereupon and thereby the incumbent shall be retired and the judge newly appointed shall enter upon the duties of and hold the office, agreeably to the provisions and requirements of the law and subject to be retired as herein or otherwise provided.The reasons for retirements hereunder shall be stated in making nominations.